Karnataka High Court
Narasimhaiah vs State By Inspector Of Police, H & B Squad, ... on 8 February, 2002
Equivalent citations: 2002CRILJ4795, ILR2002KAR3157, 2002(2)KARLJ408, 2002 CRI. L. J. 4795, 2004 AIHC 319, 2003 AIR - KANT. H. C. R. 40, (2002) ILR (KANT) (3) 3157, (2004) 4 ICC 380, (2004) 1 ACJ 484, (2003) 11 INDLD 7, (2004) 24 ALLINDCAS 358 (KAR), (2004) 3 ACC 273, (2004) 3 TAC 17, (2002) 2 CURCRIR 445, (2002) 3 CRIMES 704, (2002) 2 KANT LJ 408
Author: Mohamed Anwar
Bench: Mohamed Anwar
ORDER Mohamed Anwar, J.
1. Heard arguments of the learned Counsels for both sides.
2. By this petition under Section 482 of the Criminal Procedure Code, the petitioner-Narasimhaiah prays:
".......that this Hon'ble Court be pleased to call for records in PCR No. 461 of 1993 which has been presently numbered as C.C. No. 16457 of 1998 pending on the file of the learned 7th Additional Chief Metropolitan Magistrate, Bangalore City and further be pleased to reverse and set aside the order dated 4-5-1998 passed in the case, taking cognizance of the offences punishable under Sections 193, 465, 323, 376, 109, 114, 201 read with Section 34 of the IPC on the basis of the final report submitted by the 1st respondent herein and further be pleased to quash the entire proceedings in the case in the ends of justice".
3. Certain undisputed facts leading to filing of this petition may be stated as under:
Petitioner is accused 7 in the said C.C. No. 16457 of 1998 pending on the file of the Court below. The charge-sheet for the said offences was filed by the Investigating Officer-C.W. 75 S.S. Afsar, Police Inspector, H and B Squad, COD, Bangalore (hereinafter referred to as 'the I.O.'), against petitioner and eight other police officials. Respondent 2-Smt. Soubhagya herein is the widow of one Nanjunda. She was living with her husband in a tenement in Nanjegowda Compound, situate behind Veera Siddeshwara Talkies, Kamakshipalya, Bangalore-79. During the relevant period, the petitioner was attached to Mahalakshmi Layout Police Station, Bangalore, as a Police Constable. In March 1993, respondent 2's husband Nanjunda was taken into custody by the police of Mahalakshmi Layout Police Station in Crime No. 43 of 1993 that was registered for the offences under Sections 457 and 380 of the IPC against unknown persons. While in police custody, he died during the night between 22nd and 23rd of March 1993. Then, on 23-3-1993, Crime No. 120 of 1993 against the deceased-Nanjunda for the offence under Section 309 of the IPC was suo motu registered by H.C. No. 227, Achutha Rao of the said Police Station and FIR was despatched to the 7th Additional Chief Metropolitan Magistrate, Bangalore. Inquest on the dead body of Nanjunda was held under Section 176 of the IPC by the concerned Sub-Divisional Magistrate. Thereafter, the investigation in said Crime No. 120 of 1993 was taken over by the COD Police, Bangalore, treating the case as a case of custodial death, pursuant to the Government Order No. HD 4 COD 90, Bangalore, dated 24-1-1990 by which it was ordered that "all cases registered in respect of deaths in police custody should be investigated by the Corps of Detectives, as a matter of policy".
4. During investigation of the case by the COD in said Crime No. 120 of 1993, respondent 2-Smt. Soubhagya, widow of the deceased-Nanjunda, filed her complaint on 31-3-1993 in P.C.R. No. 461 of 1996 before the learned 7th Additional Chief Metropolitan Magistrate, Bangalore (A.C.M.M.' in short) against the petitioner herein and five other Police Officers alleging commission of offences under Sections 139, 448, 441, 348, 323, 324, 326, 302, 306, 354 and 201 read with Section 34 of the IPC charging them for having committed the murder of her husband while in police custody. She (respondent 2 herein) is, therefore, referred to as 'the complainant' hereinafter. On that complaint, the learned A.C.M.M. passed the order dated 24-4-1993 referring the complaint under Section 156(3) of the Criminal Procedure Code to the COD police for investigation and report. It was returned by the latter to the learned Magistrate stating that he had no jurisdiction under Section 156(3) of the Criminal Procedure Code to pass the said order referring the complaint to the COD The learned Assistant Public Prosecutor (A.P.P.), who was in charge of the case was stated to have filed an application before the learned Magistrate praying that the said order dated 24-4-1993 may be recalled. That application was rejected by his order dated 23-11-1996 and he further directed the COD to conduct investigation into the said complaint offences and file their report.
5. In the meantime, on registration of the said Crime No. 120 of 1993 of the said Police, further investigation therein was taken over by the COD police. Then the petitioner had approached this Court with a petition under Section 482 of the Criminal Procedure Code in Cr. P. No. 1130 of 1993 praying "to quash the entire proceeding recorded so far in, the case and also the investigation of the same by COD Police personnel, in Crime No. 120 of 1993 of Mahalakshmi Layout Police Station, Bangalore City, against the deceased prisoner Nanjunda". In that Cr. P. No. 1130 of 1993, an interim order of stay dated 8-7-1995 was passed by this Court staying further investigation by the COD in the said Crime No. 120 of 1993. During pendency of that petition, the complainant intervened and made an application i.e., I.A. No. 4 therein seeking clarification whether the said interim order of stay would operate against the order of the learned Magistrate passed in her complaint proceeding in P.C.R. No. 461 of 1993 referring the complaint to COD police for investigation and report under Section 156(3) of the Criminal Procedure Code. That application of the complainant was disposed of by order dated 6-2-1996 in pending Cr. P. No. 1130 of 1993 observing:
"2............ However, there is no order of stay, as far as order passed by the learned Magistrate referring the case to the COD for further investigation, is concerned. Such being the position there is absolutely no impediment for the COD to proceed with the further investigation according to the order passed by the Magistrate in P.C.R. No. 461 of 1993, dated 24-4-1993.............".
Subsequently, by final order dated 28-1-1997, the said petition of the petitioner in Cr. P. No. 1130 of 1993 came to be rejected holding:
"In these cases as stated earlier only the Government has directed the COD to take up the further investigation. The investigation to be conducted by the police, cannot be stayed by this Court acting under Section 482 of the Cr. P.C.............".
It was further observed therein:
".......,.. The COD has taken investigation as per the direction of the Government. Therefore this Court cannot interfere and stop the investigation. It is open to the petitioners to question the authority or the power of the COD after the FIR/Charge-sheet is filed before the Court............".
6. Thereafter, on 4-5-1998, on completion of investigation, C.W. 75, the I.O., as indicated, filed charge-sheet for the said offences against petitioner and eight other police officials in the Court of the learned Magistrate, indicating at the top of its facing sheet (by filling in the relevant entries provided for mentioning the number of the crime in which the charge-sheet was filed) that it was filed in said Crime No. "120 of 1993 (P.C.R. No. 461 of 1993)". After the charge-sheet was filed I in his Court, the learned Magistrate proceeded to pass the impugned order as under:
"Charge-sheet submitted by the COD, H and B Squad of Mahalakshmi Layout, in Crime No. 120 of 1993, under Sections 323, 376, 193, 465, 109, 114, 201 read with Section 34 of the IPC against accused. Original papers enclosed and cognizance of the offence is taken. Register the case and call on 5-5-1998".
It is this order which is now impugned by the petitioner, who seeks its quashment as also of the entire criminal proceeding in the said C.C. No. 16457 of 1998. This petition relief is grounded on the objection that the investigation conducted by the COD police and the charge-sheet filed by them pursuant to his said illegal order dated 24-4-1993 was their invalid action in law, since it was an order without jurisdiction and void ab initio.
7. Mr. C.V. Nagesh, learned Counsel for petitioner, highlighting the said ground of objection, contended that by virtue of several authoritative pronouncements it is now a settled law that the Magistrate does not have power under Sub-section (3) of Section 156 of the Cr. P.C. to refer any private complaint presented to him under Section 200 of the Cr. P.C. to any police authority other than "the police officer in charge of the Police Station" and, therefore, the said order of the Magistrate in the instant case referring the complaint in question to the COD police for investigation and report was an order without jurisdiction. As a result, he contended that the charge-sheet submitted by the COD to the learned Magistrate on 4-5-1998 against petitioner and other co-accused for the aforestated offences being the final act of the COD done pursuant to the said illegal order of the learned Magistrate, it stands vitiated in the eye of law and, therefore, the learned Magistrate could not have taken cognizance of the said offences. He further maintained that, as a legal consequence, the prosecution of the petitioner and other co-accused on the basis of the said illegal charge-sheet filed by the I.O. cannot be sustained in law. He cited the following decisions in support of these contentions:
(1) Central Bureau of Investigation through S.P., Jaipur v. State of Rajasthan and Anr. ;
(2) T. T. Antony v. State of Kerala and Ors. ;
(3) State by Superintendent of Police, COD, Bangalore v. Thammaiah and Ors. 2000(3) Kar. L.J. 293 : ILR 1999 Kar. 1012;
(4) R.N. Shetty v. Vijaya Bank, Kasaragod Branch, Honnavara, Uttara Kannada and Anr. 2001(5) Kar. L.J. 505 ; and (5) Pushparaj v. Subbanna and Ors. ILR 2001 Kar. 4568.
8. Repelling the contentions of Mr. C.V. Nagesh, it was argued by Mr. M. Mahadevaiah, learned Counsel for respondent 2, that even assuming that the said order dated 24-4-1993 of the learned Magistrate is an illegal order and was without jurisdiction, then also it will have no impact whatever on the validity of the charge-sheet submitted by the I.O. (C.W. 75) on 4-5-1998 in the Court below, in that, the investigation in respect of the incident of custodial death of complainant's husband was done by him in the said Crime No. 120 of 1993 pursuant to the FIR despatched therein to the Magistrate Court and independently of the complaint in question.
9. In the case of Central Bureau of Investigation through S.P., Jaipur, supra, the Hon"ble Supreme Court was seized of the scope of Section 156(3) of the Cr. P.C. and the extent of power of the Magistrate thereunder, while considering the following question before it: "Has a Magistrate power to direct the Central Bureau of Investigation to conduct investigation into any offence?'' The scope of Sub-section (3) of Section 156 was examined by their Lordships with reference to Section 36 of the Cr. P.C. At paragraph 9 of their judgment, their Lordships observed:
"9. In this context a reference has to be made to Section 36 of the Code which says that "police officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limit of his station" ".
Then, their Lordships proceeded to hold:
"10. This means any other police officer, who is superior in rank to an officer in charge of a police station, can exercise the same powers of the officer in charge of a police station and when he so exercises the power he would do it in his capacity as officer in charge of the police station. But when a Magistrate orders investigation under Section 156(3), he can only direct an officer in charge of a police station to conduct such investigation and not a superior police officer, though such officer can exercise such powers by virtue of Section 36 of the Code................. Section 36 of the Code is not meant to substitute the Magisterial power envisaged in Section 156(3), though it could supplement the powers of an officer in charge of a police station. It is permissible for any superior officer of police to take over the investigation from such officer in charge of the police station either suo motu or on the direction of the superior officer or even that of the Government".
The law so laid down by the Supreme Court was followed by this Court in R.N. Shetty's case, supra. Another decision of this Court in the case of Thammaiah, supra, was also referred to therein. In that case of R.N. Shetty, supra, the private complaint was referred by the learned Magistrate under Section 156(3) of the Cr. P.C. to the COD police for investigation and report. In view of the law laid down by the Supreme Court, that order of the learned Magistrate was struck down holding:
"4. ......... under Sub-section (3) of Section 156 of the Cr.
P.C., the learned Magistrate has the jurisdiction to refer a private complaint under Section 200 of the Cr. P.C., only to a police officer in charge of the jurisdictional police station as contemplated in Sub-section (1) of Section 156 of the Criminal Procedure Code. This proposition also finds support from a recent decision of the Supreme Court i.e., Central Bureau of Investigation through S.P., Jaipur's case, supra............".
The same proposition was laid down by this Court in the case of Thammaiah, supra.
10. Therefore, in the light of the aforesaid authoritative pronouncements, as rightly contended by Mr. C.V. Nagesh, the order dated 24-4-1993 of the learned Magistrate referring the complaint under Section 156(3) of the Criminal Procedure Code to the COD police for investigation and report was per se an illegal order since the Magistrate had no power to direct investigation by the COD.
11. But then, the material question which calls for consideration is whether the charge-sheet laid by the I.O. before the learned Magistrate could be stated and held as the one filed pursuant to the said order dated 24-4-1993 of the learned Magistrate and as a result of investigation conducted by him in compliance therewith, as was sought to be made out by Mr. C.V. Nagesh, or was it the charge-sheet culminated as a final result of the investigation carried out by C.W. 75 (I.O.) in said Crime No. 120 of 1993 of the Mahalakshmi Layout Police Station pursuant to the FIR thereunder despatched to the concerned Magistrate by the S.H.O.?
12. If the answer to the first part of the question is in the affirmative, then no doubt, the charge-sheet and the further criminal proceeding against petitioner and others on the file of the Magistrate would be liable to be quashed. On the other hand, if the answer to the later part of the question is to be found in the affirmative, while to the earlier part thereof in the negative; then it has to be concluded that the charge-sheet laid by the I.O. before the learned Magistrate is valid in law and the prosecution of the petitioner and other co-accused on the basis thereof is perfectly sustainable in law, which does not call for any quashment.
13. It is pertinent to note at this juncture that on receiving the complaint in question from the Court of the learned Magistrate pursuant to his said order dated 24-4-1993 under Section 156(3), neither any separate crime was registered nor any FIR was sent to the Magistrate, by the COD The FIR which was despatched to the learned Magistrate in said Crime No. 120 of 1993 of Mahalakshmi Layout Police Station was the first and the last FIR and that investigation into the circumstances of the death of the deceased-Nanjunda was already commenced by the police and that it was subsequently i.e., on 31-3-1993, which the complaint was presented to the learned Magistrate.
14. The Supreme Court in T.T. Antony's case, supra, on a detailed examination of the sweep and scope of various relevant provisions in Sections 154 to 173 of the Cr. P.C., held that any further information given to or received by the concerned police subsequent to registration of the crime and despatch of FIR to the Magistrate in relation to a cognizable offence would not and cannot be treated as a fresh FIR in law and it could be only a statement falling under Section 162 of the Cr. P.C. At paragraph 20 of its judgment, it has laid:
"20. The scheme of the Cr. P.C. is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 of the Cr. P.C. on the basis of entry of the First Information Report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of evidence collected he has to form opinion under Section 169 or 170 of the Cr. P.C., as the case may be, and forward his report to the concerned Magistrate under Section 173(2) of the Cr. P.C..........".
Further at paragraph 21, the Supreme Court proceeded to lay down:
"21. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of the Cr. P.C., only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 of the Cr. P.C. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence............. and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the Cr. P.C.".
15. At this juncture of the dictation of this order, Mr. C.V. Nagesh, learned Counsel for petitioner, intercepted and submitted that he has another point to canvas assailing the legality of the charge-sheet and consequent prosecution of petitioner and others by the I.O. Inviting the Court's attention to the definition of the police station contained in Section 2(s) of the Cr. P.C. as also the provisions of Sections 36, 156 and 173 thereof, he argued that the COD police is not and cannot be stated the "police station" within the meaning of its definition contained in Section 2(s) as also the 1.0. (C.W. 75) cannot be treated as "the police officer in charge of the police station" having power to investigate the present case relating to the occurrence of death of Nanjunda in police lockup and in that view of the law, the charge-sheet submitted by him under Section 173 gets patently vitiated,
16. Mr. M. Mahadevaiah, learned Counsel for complainant, refuted the above contention of Mr. C.V. Nagesh arguing that the COD police being a part and parcel of the C.I.D. which in turn is the part of the State Police Organisation, its officers of the rank of Police Sub-Inspector and above are empowered and competent to investigate into any serious cognizable case, by virtue of the "Standing Order No. 630". dated 21-4-1974 of the Inspector General of Police, Karnataka State, Bangalore, read with the said Government Order No. HD 4 COD 90, Bangalore, dated 24th January, 1990, followed by the circular dated 20-8-1993 issued from the office of the Director General and Inspector General of Police, Karnataka State, Bangalore. To further substantiate this conten tion, reliance was placed by him on a decision of this Court in State of Karnataka v. Gangadharachari 1975(2) Ear. L.J. Sh.N. 91.
17. It is just and proper that these rival contentions canvassed by both sides on the competency of C.W. 75 to investigate and lay the charge-sheet need be considered first, before the earlier mentioned objection raised by Mr. C.V. Nagesh be dealt with.
18. The Inspector General of Police, now designated as the Director General and Inspector General of Police of Karnataka State is the head of the Karnataka State Police Force, he being appointed as such under the Karnataka Police Act, 1963. The Karnataka State Police Force is created by Section 3 of the Act of 1963. Section 4 thereof vests superintendence of this Police Force in the Government of Karnataka. It states that;
"4. Superintendence of Police Force to vest in the Government.--The superintendence of the Police Force throughout the State vests in and is exercisable by the Government and any control, direction or supervision exercisable by any officer over any member of the Police Force shall be exercisable subject to such superintendence".
Section 6 confers power on the Inspector General of Police, subject to the control of the State Government, to exercise general control and supervision of the functioning of the Police Force in the State. C.I.D. i.e., Criminal Investigation Department, is a part of the State Police Force which was established for investigating cases involving heinous offences as are mentioned in Chapter XLIV of the Mysore Police Manual, Volume II. As could be seen from the said "Standing Order No. 630", issued from the office of the Inspector General of Police, Karnataka State, a special investigating police wing named "Corps of Detectives" ('COD' in short) was created and established in the C.I.D. establishment in order to achieve maximum result in the detection of crimes and with a view also to inspire public confidence in the police administration. The COD was established comprising eight squads, each police squad being entrusted with the investigation of crimes falling under different heads. Paragraph 9 of the said Standing Order declares "The Corps of Detectives will have its headquarters in Bangalore with jurisdiction throughout the State". Paragraph 13 thereof provides for the classes of crime to be investigated by the C.I.D. enumerated in Order 1729 of Police Manual, Volume II. These crimes are listed in different categories under this paragraph. Under category (m), it is stated:
"(m) Cases of such a complicated nature as, in the opinion of the IGP or the DGP or the district authorities, call for investigation by an officer of the Corps of Detectives".
Then, we have the aforestated Government Order dated 24-1-1990 by which the Government of Karnataka took the policy decision that all cases registered in respect of deaths in police custody should be investigated by the Corps of Detectives. In this context, paragraph 17 of the said Standing Order dated 21-4-1990 calls for our special attention. It reads:
"17. It should be noted that SIs and officers superior in rank in the C.I.D. are competent to undertake investigation at any place in the State any offence and he shall be deemed to be an officer in charge of the police station within the limits of which such place is situate".
Finally, this Court, in the case of Gangadharachari, supra, held:
"According to Notification No. HD 83 PEG 69, dated 13-2-1970, Sub-Inspector of Police, C.I.D., is deemed to be an officer in charge of the police station whenever he investigates at any place in the State an offence within the limits of which such place is situate.....".
19. Therefore, for the purpose of investigation of particular crimes on the direction of the State Government or the superior competent police Officer, the aforestated unquestionable material placed on record makes the position of C.I.D./COD to be a "police station" within the meaning of Section 2(s) and that every police officer attached to this organisation of the rank of Sub-Inspector and above is a "police officer in charge of a police station" within the meaning of Section 156(1) of the Cr. P.C. Therefore, there is no flaw in the competence of the I.O. (C.W. 75) to act as a police officer in charge of a police station within the meaning of Sections 2(s) and 156, and in the investigation carried out by him resulting in submission of the charge-sheet under Section 173 of the Cr. P.C. [see also State of Bihar v. J.A.C. Saldanna and R.P. Kapur v. Sardar Pratap Singh Kairon .] Hence, I find no legal force, whatever, in the objection of Mr. C.V. Nagesh raised in this behalf
20. Furthermore, as indicated, this very petitioner had already approached this Court in Cr. P. No. 1130 of 1993 seeking quashment of the investigation proceeding conducted by the COD police in said Crime No. 120 of 1993 of the Mahalakshmi Layout Police Station. By a speaking order dated 28-1-1997 of this Court, that petition has been dismissed holding that the COD police was legally competent to carry on its investigation into the instant case. Once that verdict of this Court had been pronounced concerning the competence and legality of the investigation by the COD police, the petitioner is estopped and precluded in law from reagitating the same point in this proceeding; although that objection has been considered by me herein above as a matter of academic interest.
21. Another pertinent aspect of the petitioner's conduct which warrants serious notice is that the dismissal of his said Cr. P. No. 1130 of 1993 is undoubtedly a very material fact concerning the validity of the investigation done by the COD police. In all its fairness, the petitioner, was therefore, required to mention that fact in his present petition. Curiously, he has failed to do so. Suppression of this material fact calls for reprobation and disentitles him to the discretionary remedy under S ection 482 of the Cr. P.C.
22. Let me now advert to the earlier ground of objection highlighted by Mr. C.V. Nagesh that the charge-sheet that was submitted by C.W. 75 to the Court below was consequent to the said order dated 24-4-1993 of the learned Magistrate by which the complaint was referred to COD under Section 156(3) of the Cr, P.C. for investigation and report. In the facts and circumstances of the case, I find this ground also wholly untenable. As has been already stated, when the complaint was referred by the Magistrate to the COD police, the latter was already seized of the investigation into the instant case relating to the occurrence of lockup death of Nanjunda on the basis of registration of said Crime No. 120 of 1993 of the said police station and despatch of the FIR to the Magistrate by the S.H.O. Subsequently, on receiving the complaint from the Magistrate, neither any crime was registered on the basis of the complaint nor any FIR was despatched to the Magistrate for commencement of investigation on the basis thereof. However, in respect of any incident relating to occurrence of a cognizable offence, the crime which is registered first at any point of time and the FIR despatched to the Court on registration thereof is the foundational step for lawful commencement of investigation by the concerned police. Any subsequent complaint or information received by the police in course of investigation cannot be the FIR in respect of that particular incident. It could be a statement falling under Section 162 of the Cr. P.C. as observed by Supreme Court in T.T. Antony's case, supra. Therefore, by no canon of construction could it be stated that investigation in respect of the said incident was commenced by the COD police on the basis of the said complaint and that pursuant thereto the charge-sheet in question was laid by the I.O. before the Court below. On the other hand, the facts and circumstances of the case clearly indicate that the crime in question was investigated by I.O. in the said Crime No. 120 of 1993 and on conclusion of that investigation, the charge-sheet in question was filed by him, which fact is also highlighted by the I.O. by filling the relevant space with "Crime No. 120 of 1993" at the top of the front page of the charge-sheet, while indicating the said P.C.R. No. 461 of 1993 in brackets. Therefore, for the reasons discussed above, I find that the charge-sheet laid by the I.O. in the Court below is a valid charge-sheet in law and the prosecution of the petitioner and other co-accused on its basis is perfectly legal and sus-tainable.
23. Nonetheless, I find Mr. C.V. Nagesh justified in his submission in one aspect pertaining to prosecution of the petitioner and others for an offence of perjury under Section 193 also. Sub-clause (i) of clause (b) of Section 195(1) of the Cr. P.C. enjoins that no Court shall take cognizance of the offence of perjury under Section 193 of the IPC, including other offences mentioned in that clause, except on the complaint in writing of the concerned Court or some other Court to which that Court is subordinate. Section 193 of the IPC provides for punishment for giving false evidence in a judicial proceeding. In view of the legal ban contained in Section 195 for giving false evidence or fabricating false evidence given or intended to be given in a judicial proceeding, the Court below could not have taken cognizance of this offence.
24. The further contention of Mr. Nagesh is that, similarly, the learned Magistrate was not competent to take cognizance of another charge-sheet offence under Section 465 of the IPC since a similar legal bar for taking cognizance by him is contained in Sub-clause (ii) of clause (b) of Section 195(1). I find it unacceptable because, it would be a too far-fetched proposition to hold that whatever may be the grave nature of the offence of forgery committed by any person in respect of any document, the police cannot investigate into the said offence unless the Court files a complaint in respect thereof, for the obvious reason that the Court will not come into picture at all till the alleged offence of forgery was fully investigated by the competent police and the charge-sheet is laid by them before the competent Criminal Court. Therefore, I am unable to accede to this contention of Mr. C.V. Nagesh.
25. Another objection that was raised by Mr. C.V. Nagesh related to the offence of rape under Section 376 of the IPC mentioned in the charge-sheet, in addition to other offences. He submitted that there was no reason for the investigating police, whatever, to file charge-sheet for this offence also when there was no whisper of any allegation in the complaint made by the complainant of commission of rape on her. This contention of Mr. C.V. Nagesh is also liable to be rejected for the simple reason that as has been discussed and held by me herein above, the COD police have investigated the occurrence of lockup death of Nan-junda, husband of the complainant, in the said Crime No. 120 of 1993 of Mahalakshmi Layout Police Station and have submitted their charge-sheet therein. It is not the binding law against the investigating police that the charge-sheet should be filed in respect of that offence or offences alone for which the crime was booked in any police station or only for those offences which were mentioned in the complaint. What offences have been made out from the evidentiary material collected by the I.O. during investigation, is left open for the I.O. to decide and make up his mind. If, in his opinion, the I.O. comes to the conclusion that the offences other than the one for which either the crime was booked or the complaint was filed are also, prima facie, made out by the material collected by him during investigation, there is no legal impediment for him to charge-sheet the accused for those offences as well. Therefore, this objection also does not hold any water.
26. For the reasons aforesaid, the petition is partly allowed insofar as the offence under Section 193 of the IPC only, mentioned in the charge-sheet filed by the I.O. (C.W. 75) in Crime No. 120 of 1993 of Mahalakshmi Layout Police Station, is concerned. That portion of the impugned order dated 4-5-1998 by which cognizance for this particular offence i.e., Section 193 of the IPC is taken by the learned Magistrate is set aside. Insofar as that order dated 4-5-1998 of the learned Magistrate taking cognizance for all other offences mentioned therein is concerned, the same is upheld and the petition is dismissed. Thus, the petition prayer for other reliefs stands rejected.